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Calif. Supreme Court: Prop. 8 deserves defense

Opinion requested by 9th Circuit supports’s right to continue defending marriage amendment

SAN FRANCISCO — The California Supreme Court issued an opinion Thursday that means the legal team, including Alliance Defense Fund attorneys, will likely be allowed to continue defending the state’s marriage amendment in federal court.

Responding to a question posed to it by the U.S. Court of Appeals for the 9th Circuit, the California high court determined unanimously that the official proponents of Proposition 8 have a right under state law to defend the amendment in light of the state’s refusal to defend its own constitution.

“The court was clearly right to conclude that the California marriage amendment should not go undefended just because state officials have refused to defend it,” said ADF Senior Counsel Brian Raum. “Because the people of California have a right to be defended, Proposition 8’s official proponents will be allowed to continue defending the marriage amendment. Otherwise, state officials would have succeeded in indirectly invalidating a measure that they had no power to strike down directly.”

The California Supreme Court wrote in its opinion, “In a postelection challenge to a voter-approved initiative measure, the official proponents of the initiative are authorized under California law to appear and assert the state‘s interest in the initiative‘s validity and to appeal a judgment invalidating the measure when the public officials who ordinarily defend the measure or appeal such a judgment decline to do so.”

“Neither the Governor, the Attorney General, nor any other executive or legislative official has the authority to veto or invalidate an initiative measure that has been approved by the voters,” the court concluded. “It would exalt form over substance to interpret California law in a manner that would permit these public officials to indirectly achieve such a result by denying the official initiative proponents the authority to step in to assert the state‘s interest….”

Lead counsel Charles J. Cooper of the Cooper & Kirk law firm argued before the court on Sept. 6. The 9th Circuit will now consider the opinion and issue its own ruling.

The question that the U.S. Court of Appeals for the 9th Circuit asked the California Supreme Court to answer in the federal lawsuit Perry v. Brown was as follows: “Whether under Article II, Section 8 of the California Constitution, or otherwise under California law, the official proponents of an initiative measure possess either a particularized interest in the initiative’s validity or the authority to assert the State’s interest in the initiative’s validity, which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so.” is the banner organization for the official proponents and campaign committee of California’s Proposition 8.

  • Pronunciation guide: Raum (RAHM’)


ADF is a legal alliance of Christian attorneys and like-minded organizations defending the right of people to freely live out their faith. Launched in 1994, ADF employs a unique combination of strategy, training, funding, and litigation to protect and preserve religious liberty, the sanctity of life, marriage, and the family.


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